Luis Esquivel v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00161-CR
Luis ESQUIVEL,
Appellant
v.
STATE of Texas,
Appellee
From the 186th Judicial District court, Bexar County, Texas
Trial Court No. 2003-CR-2894
Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 4, 2004

DISMISSED

Pursuant to a plea bargain agreement, Luis Esquivel pled guilty to burglary of a habitation with intent to commit assault. On February 23, 2004, the trial court imposed sentence and signed a certificate stating that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a). After Esquivel timely filed a general notice of appeal, the clerk sent copies of the certification and notice of appeal to this court. See Tex. R. App. P. 25.2(e). The clerk's record, which includes the trial court's Rule 25.2(a)(2) certification, has been filed. See Tex. R. App. P. 25.2(d).

"In a plea bargain case . . . a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." Tex. R. App. P. 25.2(a)(2). The clerk's record, which contains a written plea bargain, establishes that the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by Esquivel. See Tex. R. App. P. 25.2(a)(2). The clerk's record does not contain a written motion ruled on before trial nor does it indicate the trial court granted permission to appeal. The trial court's certification therefore appears to accurately reflect that this is a plea bargain case and Esquivel does not have the right to appeal. This court must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made a part of the record." Tex. R. App. P. 25.2(d).

On April 14, 2004, we gave Esquivel notice that the appeal would be dismissed unless an amended certification showing he has the right to appeal has been made part of the record by May 14, 2004. See Tex. R. App. P. 25.2(d); 37.1; Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.-San Antonio 2003, interlocutory order) (en banc). An amended certification showing Esquivel has the right to appeal has not been filed. We therefore dismiss this appeal. Tex. R. App. P. 25.2(d).

PER CURIAM

Do Not Publish